Witness Preparation by Steve W. Schneider

The paralegal trial assistant is usually assigned the task of ensuring the availability of all witnesses needed at trial. Typical witnesses include the client, lay (fact) witnesses, and expert witnesses. Each of these witnesses must be prepared for their testimony at trial and their appearances coordinated to assure the most effective presentation of the client's case. How each witness is contacted and prepared for trial differs with the type of witness.

The Client

The client should be notified of the trial date as soon as the court assigns it. This trial date may be months in the future, but it is important that the client put aside the time needed to attend the trial. The impression the client makes with a judge or jury depends on the client's presence. If the client does not appear attentive and interested in the proceedings, as when the client is not present, the judge or jury will conclude that the client does not really care about the outcome of the trial. If the client needs to make special arrangements to be present at trial, it is better to make those plans well in advance.

The lawyer usually performs the task of preparing the client for testimony at trial. The client is often the most important witness supporting the client's case and most lawyers do not delegate the task of preparing this vital witness. On the other hand, paralegals often participate in the client preparation meeting and provide necessary support for the client prior to the actual testimony. The client should not be “rehearsed” but should be aware of the important points in the case and how the lawyer intends to bring those points to the attention of the judge and jury. In addition, the client should be instructed on possible objections and how to deal with them. The primary areas of cross-examination should be identified and addressed.

Alert

The task of preparing a client for trial presents many opportunities for the paralegal to commit the unauthorized practice of law by giving legal advice. Instructing the client about the effect of a specific answer, sharing the lawyer's trial tactics with the client, and even telling the client what approach the opponent is expected to take are all legal advice. Where possible, conduct client preparation in the presence of the trial lawyer. If that is impossible, be sure to tell the client that the lawyer must answer all questions about trial tactics.

The role of the paralegal trial assistant is to make sure the client is present for the trial and all preparation sessions. In addition, the paralegal trial assistant should provide the client with copies of all statements or depositions of the client; these prior statements may be used against the client if the testimony at trial differs. The client should be provided with all documents containing statements of the client, including signed discovery responses such as interrogatories or requests for admission. These documents are signed under oath and can be used to impeach the client. Finally, the client should receive copies of each document or exhibit that will be offered into evidence from either side. All of these items must be provided to the client in the weeks before trial even if copies were given to the client several months ago. In connection with this, the paralegal trial assistant should personally review the documents to identify discrepancies or other issues that should be brought to the attention of the client and lawyer.

Lay Witnesses

Lay witnesses are witnesses who do not have any particular expertise about the subject matter of the litigation. These witnesses are sometimes called “fact witnesses” because their testimony is limited to the facts they have observed or experienced that are related to the lawsuit. A witness to an accident is a fact witness, as is a friend who testifies in a custody dispute.

Lay witnesses are of three kinds: friendly, neutral, and hostile. A friendly witness is willing to testify for the client and is usually cooperative in providing information and arranging time for preparation meetings and appearance at trial. A neutral witness usually has no particular connection to the case and often does not know either party. This kind of witness is cooperative to a point, but seldom willing to be inconvenienced to help the client. A hostile witness is unwilling to help the client, usually because of an affiliation with the opposing party. These witnesses are uncooperative and provide the most resistance to testifying at trial.

The role of the paralegal trial assistant with respect to lay witnesses is threefold. First, the witnesses must be identified and contacted. Second, the information possessed by the witness must be verified. Finally, the paralegal trial assistant must secure the attendance of the witness at trial.

Identifying and Contacting Lay Witnesses

Lay witnesses are usually identified from information in the client file. The client may identify a person who can testify on a crucial issue, a police report might identify an eyewitness, or the author of a document may testify about the facts in the document. These witnesses are identified in the pretrial preparation phase — those who are needed at trial must be recontacted. As with any contact with persons other than the client, the paralegal trial assistant should check with the supervising attorney concerning the ethics of contacting lay witnesses.

A well-kept client file will contain contact information on each potential lay witness. If the importance of the lay witness was obvious from the beginning, the paralegal may have collected possible dates of unavailability and alternate contact numbers. In the weeks before trial, the paralegal trial assistant should renew personal contact with each lay witness. The witness must be advised of the date the trial begins and the expected day the testimony of the witness is needed. Potential conflicts should be identified and resolved if possible. The witness should be encouraged to ask questions about their role in the proceedings, but the paralegal trial assistant must never disclose confidential or strategic information.

ssential

If the client matter is a litigation matter or a matter that is expected to result in litigation, the work of formulating witness files begins when the client file is opened. A paralegal who works on litigation matters quickly learns to treat every assignment with an eye toward the eventual use of the work product at trial. If you organize the file with the trial in mind, the final creation of a “trial file” or a “trial notebook” is much easier.

It is useful to follow the renewed personal contact with a letter. The letter serves as a reminder to the witness, documents the efforts of the paralegal trial assistant, and offers the opportunity to address additional issues such as transportation and witness fees. When the witness is friendly or neutral, the letter may contain an invitation to contact the paralegal trial assistant with additional questions. When writing such a letter, the paralegal trial assistant must keep in mind that this letter may be produced at trial. It is common to ask witnesses if they have discussed the case with the opposing side. If the lay witness has discussed the case, the witness will be asked to describe what was said. Extraneous information can damage the credibility of a lay witness who is seen as influenced by the actions of the lawyer or paralegal trial assistant.

Hostile witnesses cannot be approached in this manner. Because they are uncooperative, the use of hostile witnesses is limited to cases where a fact cannot be proved in any other way. Because hostile witnesses are generally uncooperative and unwilling to appear voluntarily, the initial contact phase is often skipped with these witnesses.

Verifying the Information Possessed by the Lay Witness

If the lay witness has been interviewed, has given a recorded statement, or has been deposed, the paralegal trial assistant should consider verifying the important facts in those documents. Do not provide copies of those documents to the witness without express instructions from the supervising attorney. The rules of evidence governing the admissibility of evidence often depend on how a witness remembers a fact and these evidentiary distinctions may be a part of the trial strategy. If the lay witness offers information in addition to, or different from, the information in the file, the paralegal trial assistant should make a note of the discrepancy and report it to the supervising attorney as soon as possible. Seemingly insignificant variations of fact can have significant consequences for the conduct of a trial.

Alert

Knowledge of the law of evidence can be extremely useful to the paralegal trial assistant. Knowing the law of evidence allows the paralegal trial assistant to avoid mistakes that can have adverse effects on the client's case. The law of evidence affects the admissibility of oral testimony and documents at trial. If you have any question about the admissibility of a particular piece of evidence, be sure to seek a complete explanation of the issue from the supervising attorney before discussing the evidence with anyone.

In most cases, the paralegal trial assistant can verify the information held by a lay witness over the telephone. In some instances, a personal interview may be required. Always verify the need for such and interview and the parameters of the need for the interview with the supervising attorney.

Securing the Attendance of the Lay Witness at Trial

Some witnesses appear at trial voluntarily. Others are reluctant or unwilling to appear. In each case, the use of a subpoena is advisable. A subpoena is an order from the court directing the witness to appear at a specific date and time. A subpoena must be personally served on the witness and, in most states, must be accompanied by the statutory witness fees and expenses. Any witness can be subpoenaed. All lay witnesses should be subpoenaed for several reasons.

Fact

The best source of information on subpoena requirements is the court clerk. If you can, make a personal visit to the clerk's office the first time you use a subpoena. Ask the clerk what fees are necessary, what information is required, and whether the returned subpoena must be filed with the court. They will be happy to help and you will minimize the possibility of a mistake in handling the subpoena.

First, the subpoena guarantees the appearance of the witness at trial. If the witness is not present when needed, the trial judge will ask the parties to move on. Sometimes the trial will last long enough to make another attempt at securing the attendance of the witness. In others, this requires a delay in the proceedings. All the promises the witness gave you are of no avail if you have not made an effort to secure the attendance of the witness by subpoena.

Second, even if the witness is agreeable and does appear, the use of a subpoena is additional assurance. Everyone understands that a witness under subpoena must testify. Not everyone understands a witness who appears voluntarily. The use of subpoenas for all lay witnesses places all witnesses on an even footing.

Third, the use of subpoenas creates a kind of schedule for the trial. When a witness is subpoenaed to appear at 2:00 P. M., there is a tendency to make every effort to be ready for that witness at that time. Witnesses who are irritated because of long waits can be detrimental to a client's case. The subpoena for a specific time is a reminder of this fact.